Appellate Case: 24-5055 Document: 52-1 Date Filed: 03/25/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5055 (D.C. No. 4:22-CR-00201-DDC-1) DARREL DEAN GUINN, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________
Darrel Dean Guinn appeals his convictions for aggravated sexual abuse of a
minor under twelve and abusive sexual contact of a minor in violation of 18 U.S.C.
§§ 1151, 1153, 2241(c), and 2244(a)(3). He also challenges a special condition of his
supervised release prohibiting the possession or enjoyment of sexually explicit
material. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-5055 Document: 52-1 Date Filed: 03/25/2025 Page: 2
Background
In 2021, Guinn was living with his ex-wife, Megan Locke, their two teenaged
daughters, Z.G. and L.G., and Locke’s 11-year-old daughter, K.L. One evening, K.L.
confided in her older sister L.G. that Guinn was doing sexual things to her that made
her feel uncomfortable. L.G. related this information to their mother, who took K.L.
to the emergency room to be examined by a healthcare professional. At the hospital,
K.L. was examined by a sexual assault nurse examiner (SANE). After interviewing
Ms. Locke and K.L. and conducting what is known as a SANE exam, the nurse called
the police.
Guinn was subsequently charged with four counts of sexual misconduct. Only
counts one and three are relevant on appeal.1 Count one charged Guinn with
knowingly engaging in or attempting to engage in a “sexual act” with K.L., a child
who had not attained the age of 12, in violation of 18 U.S.C. §§ 1151, 1153, and
2241(c). Count three alleged that he knowingly engaged in and caused “sexual
contact” with L.G. in violation of 18 U.S.C. § 2244(a)(3). That provision
criminalizes sexual contact with a child who has attained the age of 12, but not 16
years, and who is at least four years younger than the perpetrator. See id. (cross-
referencing 18 U.S.C. § 2243(a)).
1 Counts two and four charged Guinn with coercion and enticement under 18 U.S.C. § 2422(b). Based on the government’s concession, the district court entered a judgment of acquittal as to those counts on procedural grounds. 2 Appellate Case: 24-5055 Document: 52-1 Date Filed: 03/25/2025 Page: 3
Guinn was convicted after a jury trial and sentenced to 384 months’
incarceration, followed by a lifetime term of supervised release. In addition to the
standard conditions of supervision, the district court imposed numerous special sex
offender conditions, including Special Condition 1(4), prohibiting the possession or
viewing of material depicting “sexually explicit conduct,” as defined in 18 U.S.C.
§ 2256(2). See R. vol. 1 at 540.
On appeal, Guinn challenges both his convictions and the district court’s
imposition of Special Condition 1(4). With respect to count one, he argues the
prosecution failed to prove he engaged in the requisite sex act with K.L. Guinn
maintains that K.L.’s trial testimony was coached, and that without it, the evidence
was insufficient to support a conviction. With respect to count three, he argues that
L.G.’s testimony was too vague to prove he touched her with the requisite intent.
Finally, Guinn claims the district court erred in imposing Special Condition 1(4)
because it failed to make particularized findings justifying the special condition with
compelling reasons.
Discussion
I. Sufficiency of the Evidence
a. Standard of Review
“We review the sufficiency of the evidence de novo. This review is highly
deferential, meaning we consider the evidence and make reasonable inferences in the
light most favorable to the Government.” United States v. Burtrum, 21 F.4th 680,
685-86 (10th Cir. 2021) (internal quotation marks and citation omitted). As a
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reviewing court, “we defer to the jury’s assessment of a witness’s credibility.”
United States v. Flechs, 98 F.4th 1235, 1243 (10th Cir.), cert. denied, 145 S. Ct. 310
(2024). This court will not second-guess the jury’s fact-finding decisions or weigh
conflicting evidence. Id.
b. Count One
Count one charged Guinn with committing a sexual act against K.L. in
violation of 18 U.S.C. § 2241(c). The parties agree that to convict, the Government
had to prove (1) that Guinn knowingly engaged in a sexual act with K.L.; (2) at the
time of the sexual act, K.L. had not attained the age of 12 years; (3) that Guinn is
Indian; and (4) that the offense occurred within Indian country. Only the first
element is at issue on appeal. Guinn argues the government failed to prove he
committed a sexual act.
The term “sexual act” is defined in 18 U.S.C. § 2246(2). As relevant here,
such an act is characterized by direct contact between the penis, mouth, or finger of
the perpetrator and the genitalia of the child victim. At trial, K.L. testified that Guinn
did several things to her that meet the definition of sexual act. Specifically, K.L.
testified that Guinn put his “balls” in her. R. vol. 3 at 165. When asked what a man
does with “his balls,” K.L. replied that “[h]e pees” with them. Id. And when she was
asked what part of her body was invaded by Guinn’s “balls,” K.L. responded he put
them in her “no-no square,” which she described as the part of the body she “pee[s]
out of.” Id. at 165-66. K.L. also testified that on another occasion, Guinn put his
fingers in her “butterfly,” another word for her “no-no square.” Id. at 167. During
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this same encounter, Guinn touched K.L.’s nipples under her clothes. Finally, K.L.
testified to a third incident in which Guinn “put his face between [her] no-no square.”
Id. at 168. K.L. stated, “[h]e licked it and then put his balls in me.” Id. at 169. K.L.
testified that after this incident, it hurt her to use the restroom. We conclude a
reasonable jury could infer from this evidence that Guinn committed a sexual act as
defined in § 2246(2). See Burtrum, 21 F.4th at 687 (upholding conviction for sexual
abuse where child victim testified the defendant “touched his ‘bad spots’ that were
‘by his butt’” (brackets omitted)).
Guinn does not deny these descriptions meet the definition of a sexual act but
argues K.L.’s testimony cannot be believed because her use of sophisticated language
during other parts of her testimony prove she was coached. Specifically, Guinn
points to several instances during K.L.’s examination when she used the term “rape”
and then, upon further questioning, admitted that she did not understand what that
word meant.2 According to Guinn, these instances, combined with testimony from
family members that K.L.’s godmother explained to her what it meant to be raped,
show that K.L. was coached by her family to falsely testify against him.
We reject this argument for the same reason given by the district court in its
order denying Guinn’s motion for judgment of acquittal. It was a perfectly
2 In one such exchange, the prosecution asked K.L., “[d]id anything ever happen with [Guinn] that made you feel uncomfortable?” R. vol. 3 at 163. K.L. answered, “yes . . . [h]e rapes me.” Id. The prosecution responded, “Okay. And can you tell me about that?” Id. K.L. answered, “I don’t really know a whole lot about it.” Id.
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reasonable argument to make to the jury, “[b]ut just as surely, it was rational for the
jury to reject [it]. . . . Its verdict reflects that it did so.” R. vol. 1 at 529. True, K.L.’s
testimony included sophisticated terminology that she probably did not understand.
But Guinn’s argument ignores that she also described his conduct in the plain
childlike language that we reproduced above. It was the province of the jury to
assess K.L.’s credibility and consider her testimony as a whole, along with the other
admitted evidence, in deciding whether a sexual act occurred. We will not second
guess the jury’s credibility determination or the findings and reasonable inferences
that it drew from K.L’s testimony. See Flechs, 98 F.4th at 1243 (“[W]e defer to the
jury’s assessment of a witness’s credibility.”).
Furthermore, as the government points out, K.L.’s testimony did not stand
alone but was supported by corroborating evidence. See United States v.
Goldesberry, 128 F.4th 1183, 1192 (10th Cir. 2025) (in reviewing sufficiency
challenge, “we do not examine the evidence in bits and pieces, but instead consider
the collective inferences to be drawn from the evidence as a whole” (internal
quotation marks, citation, and brackets omitted)). In this case, K.L.’s testimony was
bolstered by both her sister, L.G., and the SANE nurse, both of whom testified that in
their conversations with K.L., she described Guinn’s conduct in ways consistent with
her trial testimony.
Against this testimony, Guinn points to the SANE exam, which did not yield
any physical evidence of sexual assault. But the absence of physical evidence is not
enough to overturn the jury’s verdict in this case. In reviewing whether the evidence
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was sufficient to support the conviction, the question “is not whether a reasonable
jury could possibly conceive of an alternative interpretation of the evidence at trial.
It is whether a rational trier of act could have found the elements beyond a reasonable
doubt.” Burtrum, 21 F.4th at 686 (internal quotation marks and citation omitted).
Taking all reasonable inferences in favor of the government, we conclude the
evidence was sufficient to support the conviction under § 2241(c).
c. Count Three
Count three charged Guinn with engaging in sexual contact with his daughter
L.G. in violation of 18 U.S.C. § 2244(a)(3). Similar to count one, the only issue on
appeal is whether the evidence was sufficient to show “sexual contact” as that term is
defined in the statute.3 Sexual contact is the “intentional touching, either directly or
through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of
any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
3 The government contends that plain-error review governs Guinn’s sufficiency challenge to count three because his written motion for judgment of acquittal in the district court attacked count three on specific grounds that he has since abandoned. In that motion, Guinn argued that sexual contact requires penetration of the victim, something he no longer claims. Guinn acknowledges the inconsistency between his district court and appellate briefing but notes that he also made an oral motion for judgment of acquittal that raised a more general challenge. Ordinarily, “when a defendant moves for acquittal on specific grounds, all grounds not specified in the motion are forfeited.” United States v. Simpkins, 90 F.4th 1312, 1317 (10th Cir. 2024) (internal quotation marks and brackets omitted). But we have also held that “a general motion for acquittal that does not identify a specific point of attack challenges the sufficiency of each essential element of the government’s case.” Id. (internal quotation marks omitted). We need not decide the standard-of-review issue here because we conclude that whether reviewed de novo or for plain error, the evidence was sufficient to support a conviction on count three. 7 Appellate Case: 24-5055 Document: 52-1 Date Filed: 03/25/2025 Page: 8
sexual desire of any person.” Id. § 2246(3). The gravamen of this offense is contact.
United States v. Norman T., 129 F.3d 1099, 1103 (10th Cir. 1997). And as the statute
makes clear, that contact can occur “either directly or through the clothing[] of the
victim.” United States v. Hayward, 359 F.3d 631, 641 (3rd Cir. 2004) (internal
quotation marks and emphasis omitted); see also United States v. Gallardo, 970 F.3d
1042, 1045 (8th Cir. 2020) (upholding sexual contact conviction where touching
occurred through clothing).
Guinn’s conviction is based on an instance of him touching 14-year-old L.G.’s
buttocks through her clothing. Specifically, L.G. testified that Guinn entered the
room where she was watching a movie and “humped [her] backside.” R. vol. 3
at 195-96. In response to clarifying questions, she explained that Guinn “pressed his
lower half against [her] rear.” Id. at 196. L.G. further explained that “lower half”
referred to the part of Guinn’s body used for “going to the bathroom.” Id. According
to her testimony, Guinn pressed that part of his anatomy against her “bum.” Id. The
government’s attorney asked L.G. to explain what the term “humping” means: “Do
you remember what sort of motion he was making with his body?” Id. at 199. L.G.
answered, “It was like back and forth.” Id. at 200.
Guinn claims this testimony was insufficient to establish that he touched L.G.
with the requisite sexual intent. He points out that L.G. did not say he pressed his
penis against her and he argues generally that her testimony was too vague to support
a conviction. We disagree. First, the definition of sexual contact specifies where the
victim must be touched; it does not specify that a particular part of the defendant’s
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body must do the touching. Second, L.G.’s testimony describing Guinn’s “lower
half” plainly inferred that she felt his penis touching her backside. Third, and
perhaps most importantly, L.G. did not merely testify that Guinn touched her; she
said he “humped” her. And on further examination, she expressed an understanding
of that term. In short, “the contact alleged [was] so clearly sexual that a jury [could]
infer the defendant’s intent.” Gallardo, 970 F.3d at 1045 (internal quotation marks
omitted). Also, the humping incident was not the sum of L.G.’s testimony. She also
testified that on another occasion, Guinn asked her to “have intercourse” with him,
R. vol. 3 at 197, and generally made her feel uncomfortable with sexual comments.
Taking all reasonable interpretations of the evidence in the government’s favor, we
conclude it was sufficient to support a conviction on count three.
II. Special Condition 1(4)
After his prison term, Guinn will be placed on supervised release and will have
to comply with numerous conditions, including Special Condition 1(4), which bans
material “depicting or describing sexually explicit conduct.” R. vol. 1 at 540. At
sentencing, the district court explained this condition will preclude Guinn “from
viewing even adult pornography or patronizing adult pornography business[es].”
R. vol. 3 at 514. The court found the condition necessary “[b]ased on the offenses
[Guinn] committed,” and because “it is often impractical to differentiate between
teenaged children and adults in sexually oriented materials, and pornography often
depicts and glorifies violent sexual behavior.” Id. at 513, 514. Guinn asks us to
vacate this condition based on procedural error, arguing the district court failed to
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engage in the particularized analysis mandated by 18 U.S.C. § 3583(d) and imposed
the condition without providing any compelling, case-specific reasons. As Guinn
concedes, because he failed to object to Special Condition 1(4) at sentencing, we
review this issue for plain error. United States v. Koch, 978 F.3d 719, 724 (10th Cir.
2020). “[W]e will reverse only if there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Individuals enjoy a fundamental right protected by the First Amendment to
possess sexually explicit materials involving adults. Id. Accordingly, before a court
may impose a special condition infringing on that right, it must set forth, on the
record, defendant-specific findings that show a compelling interest. Id. at 725;
United States v. Englehart, 22 F.4th 1197, 1207-08 (10th Cir. 2022). The
government acknowledges that the district court’s terse explanation for imposing
Special Condition 1(4) “likely” failed to meet this standard. Appellee’s Br. at 27-28.
And it further concedes that under this court’s caselaw, “the district court’s error in
failing to connect Mr. Guinn’s background and the special condition to the statutory
factors in § 3583(d) was likely plain.” Id. at 28. We therefore focus our attention on
the last two prongs of the plain-error analysis, whether the court’s error affected
Guinn’s substantial rights and its impact on the fairness, integrity, and public
reputation of the proceedings.
“For an error to affect substantial rights, it must be prejudicial, meaning it
generally must have affected the outcome of the district court proceedings.”
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United States v. Chatwin, 60 F.4th 604, 607 (10th Cir. 2023) (internal quotation
marks omitted). In a case like this, the error was prejudicial “if there is a reasonable
probability the district court would not have imposed the special condition if it had
undertaken the required analysis.” Koch, 978 F.3d at 729. The prejudice question
turns on whether the record reveals a basis for the special condition. If it does, then
“there is no reasonable probability that but for the error the defendant’s sentence
would be different[,] and thus the proceeding’s fairness was not impacted.” Id.
(internal quotation marks omitted); see United States v. Henry, 979 F.3d 1265, 1270
(10th Cir. 2020) (same).
Several courts have upheld adult pornography bans in cases involving child
pornography. See United States v. Mike, 632 F.3d 686, 700 n.9 (10th Cir. 2011)
(citing cases). In fact, this court recently upheld a special condition like the one at
issue here, citing the defendant’s use of adult pornography in grooming his child
victims. See United States v. Rosas, No. 23-2085, 2024 WL 3813215, at *3
(10th Cir. Aug. 14, 2024) (unpublished).4 There is no evidence the victims in this
case were forced to watch adult pornography. But there is evidence of sexually
deviant behavior linked to pornography in Guinn’s past. At the trial, his younger
sister testified that Guinn sexually abused her as a child and that, while doing so, he
forced her to watch adult pornography. See, e.g., R. vol. 3 at 302 (“I remember
4 “Although unpublished decisions from this court are not precedential, we may rely on them to the extent their reasoning is persuasive.” United States v. Garcia, 74 F.4th 1073, 1101 n.15 (10th Cir. 2023). 11 Appellate Case: 24-5055 Document: 52-1 Date Filed: 03/25/2025 Page: 12
watching pornography in his bedroom and him—and he did attempt to get me to do a
couple of things on the video like use my mouth.”). This evidence demonstrates both
a history of grooming with adult pornography and that Guinn consumed pornography
in adolescence, normalizing sexual behavior at around the same age as the youngest
victim in this case. See Rosas, 2024 WL 3813215, at *4 (holding defendant’s
consumption of adult pornography at young age provided additional justification for
special condition).
“Under plain error review, we may vacate special conditions of supervised
release only if the record reveals no basis for the conditions.” Koch, 978 F.3d at 729
(emphasis added) (internal quotation marks omitted). The record in this case,
although not overwhelming, did provide such a basis. Guinn was convicted of two
sexual offenses, and the district court heard testimony from both of his sisters that he
engaged in sexually deviant behavior with them as children. One of his sisters
testified that Guinn groomed her with adult pornography when she was a child. It is
no leap to conclude from this evidence that sexually explicit material negatively
impacts Guinn in a way that could benefit from correctional treatment. Accordingly,
we conclude there is no reasonable probability the district court would have forgone
Special Condition 1(4) had it undertaken the proper analysis. Because Guinn’s
arguments do not undermine our confidence in the outcome of his sentencing
proceeding, he fails at step three of plain-error review. See United States v. Booker,
63 F.4th 1254, 1262 (10th Cir. 2023) (“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (internal quotation marks
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omitted)). This failure obviates the need to engage in step four of the analysis.
United States v. Perez-Perez, 992 F.3d 970, 980 (10th Cir. 2021); United States v.
Trujillo, 960 F.3d 1196, 1208 (10th Cir. 2020).
The judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips Circuit Judge